Prosecutors urge Guantánamo judge not to split up 9/11 trial

Pentagon prosecutors argued in a motion Thursday against splitting up the joint death-penalty prosecution at Guantánamo of the five men accused of orchestrating the 9/11 attacks.

The chief war court judge, Army Col. James L. Pohl, sought the opinion last week after encountering scheduling conflicts for a motions hearing scheduled for June 12-15 at the U.S. Navy base in southeast Cuba. It was to be the first hearing following the marathon, 13-hour May 5 arraignment of alleged mastermind Khalid Sheik Mohammed and four other alleged accomplices in the Sept. 11, 2001 attacks.

But the criminal defense attorney for Mohammed notified the court he cannot get to Cuba on June 12 because he’s representing a convicted killer facing execution by lethal injection on that same day in Boise, Idaho.

Three other Sept. 11 defense teams agreed to the delay. But the attorney for a Saudi man charged in the conspiracy argued he was prepared to go forward with the June 12 hearing, creating a conundrum for the war court’s so-called "speedy trial clock."

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The 9/11 prosecutors wrote in a court filing Thursday that early scheduling conflicts in the death penalty did not necessitate splitting the five-man prosecution.

"Severance of this jointly-referred capital commission would be an extraordinary action that should not be regarded by the military judge as ‘appropriate relief’ in these circumstances," the prosecution wrote, in an extract obtained by The Miami Herald.

The filing itself was under seal undergoing a security review, which at the war court gives intelligence agencies up to 15 business days to scrub military commissions documents filed with the military commissions clerk.

The Pentagon spokesman for Guantánamo issues, Army Lt. Col. Todd Breasseale, would not provide a comment on the prosecution position.

Prosecutors also argued in their brief that "no defense counsel or accused" had sought a speedy trial. Nor had any of the alleged Sept. 11 plotters "articulated any prejudice that any accused might suffer by proceeding jointly."

Rather, the prosecution wrote that the Pohl, as presiding judge, has the authority to delay the scheduled June 12-15 session "to accommodate reasonable scheduling issues of defense counsel." Or, they wrote, he could order the delay "in the interest of justice."

Defense attorneys for the Sept. 11 accused have until May 31 to respond.